Opposition Brief — Cigna Corp. v. Leodori

fy) Supreme Court, U.S

VEY FILED

No. 02-1680 JUN 1 3 2093

In The

Supreme Court of the Anited States

e

bd

CIGNA CORPORATION, et al.,

Petitioners,

V.

PAUL LEODORI,

Respondent.

a

-

On Petition For A Writ Of Certiorari

To The Supreme Court Of New Jersey

4

v

BRIEF OF THE RESPONDENT IN

OPPOSITION TO THE PETITION

FOR A WRIT OF CERTIORARI

4

vy

PAUL A. LEODORI

4 Heron Court

Medford, New Jersey 08055

(609) 654-5651

Respondent, Pro Se

|

TABLE OF CONTENTS

Page

Re OE FF tee EAI favevnesinecetaccnescecevcessassionees ii

FEAR EPOEET Ee CO BEEN Ce iesnesssecovensnnsssscsecnovesonenes 1

THIS COURT LACKS JURISDICTION TO GRANT

Be TERRES Ce CMe RINNE hee snsescisecivisciccssecsiveevensse |

THE UNIQUE FACTS FURTHER JUSTIFY DE-

NIAL OF PETITIONERS’ PETITION.................... 2

_A WRIT SHOULD BE DENIED BECAUSE THE

DECISION BELOW ABIDES WITH THE FAA

AND WITH DECISIONS OF THIS COURT.......... -

A WRIT SHOULD BE DENIED BECAUSE NO

CONTROVERSY EXISTS IN THE COURTS

OVER ARBITRATION AGREEMENTS. ................

A WRIT SHOULD BE DENIED SINCE HOLDINGS

BY NEW JERSEY COURTS ABIDE BY THE

‘i

TABLE OF AUTHORITIES

Page

CASES

Allied-Bruce Terminex Cos. v. Dobson, 513 U.S. 265

(REDE D. .xccccstoninscnsssniessinnecisticibaisisiaitiiahiieniadameniiatcccci a niason anit 6

David L. Threlkeld & Co. v. Metallgesellschaft Lid.,

923 F.2d 245 (2d Cir.), cert. waewitne 501 U. S.

BOOT CR cecsissiivisnisicseininsiticniniieiesinaihatiatininaiieh pideiiaie iaaena ie 6

Doctor’s Associates Inc. v. Casarotto, 517 U.S. 681

CRD . ceniecencsnscsnsnsesnsvccsibtdossesihaesiccainiaetsdiadiaaaesladiaepacianiamaamasacis 6

Martindale v. Sandvik, Inc., 800 A.2d 872 (2002) ............. 7

Perry v. Thomas, 482 U.S. 483 (1987) ..........cccccccsccssrecsreees 1

Singer v. Commodities Corp (U.S.A.), 678 A.2d

ROS Chee, Re, Ta acincesctcaicacncinnetaccinnidendenttniaiess 7

Young v. Prudential Ins. Co. of America, 688 A.2d

1069 (App. Div.), certif. denied, 694 A.2d 193

CEI D ssissininvsensnnseutaicisnsiaeniniiadadabiaiaenaamaeiaas 7

STATUTES

Federal Arbitration Act, 9 U.S.C. § 1-16(2000)........ passim

BB UAD.. S TT Ce ccevincstinrnnitiitscscnitantacitniinaniiniin 1

MISCELLANEOUS

Restatement (Second) of Contracts 60 (1981) ............:00ss000 4

1

STATEMENT OF THE CASE

The Federal Arbitration Act, 9 U.S.C. § 1-16 (2000)

(“FAA”) does not apply to this case because the New

Jersey Supreme Court held there was no arbitration

agreement, written or otherwise, between any Petitioner

and Respondent. Petitioner Insurance Company of North

America (“INA”) merely offered a written agreement to

arbitrate that required acceptance by Respondent signing

same. However, INA’s offer was revoked via e-mail prior to

any acceptance and the revoked agreement to arbitrate

was never even signed by Respondent.

The record further establishes that there could be no

_ consideration for such an arbitration agreement with

Respondent because INA expressly admitted to “removing

the link between signing the Handbook receipt and future

compensation and benefits actions.” Pet., App. at 8a. Since

all of Petitioners’ arguments are erroneously based upon a

fictional arbitration agreement not supported by the

record, they all must fail.

,%

THIS COURT LACKS JURISDICTION TO

GRANT A WRIT OF CERTIORARI

The “preeminent concern” behind the FAA was to

“enforce private [arbitration] agreements into which

parties had entered.” Perry v. Thomas, 482 U.S. 483, 490

(1987). Since the New Jersey Supreme Court found no

agreement to arbitrate, the FAA is not applicable and this

Court lacks jurisdiction to grant a writ of certiorari pursu-

ant to 28 U.S.C. § 1257(a) (1993).

¢

2

THE UNIQUE FACTS FURTHER JUSTIFY

DENIAL OF PETITIONERS’ PETITION

_ While an employee of Petitioner INA, Respondent was

presented in July, 1998 with an employee handbook called

“You and CIGNA” which included at page 77 the following

proposed agreement. Pet., App. at 6a-7a.

EMPLOYEE HANDBOOK RECEIPT

AND AGREEMENT

This is to acknowledge that I have received my

copy of the July 1998 employee handbook, You

and CIGNA. I understand that by accepting em-

ployment and being eligible to receive increases

in compensation and benefits, I am agreeing to

the following two important terms of my em-

ployment described in You and CIGNA: (1) my

employment can be terminated by me or my em-

ployer at_any time for any reason — therefore, my

employment is at the will of either party, and (2)

I will use the Company’s internal and external

employment dispute resolution processes to re-

solve legal claims against the Company — there-

fore rather than go to court or to a government

agency for a hearing to decide my legal ciaim, I

will submit my employment related legal claims

except workers’ compensation and unemploy-

ment compensation to final and binding neutral

third party arbitration. I understand further that

these two terms of my employment replace and

supersede any prior agreement concerning these >

terms and cannot be changed except in writing

signed by me and the president of the Company.

(*The term “the Company” means the particular

CIGNA subsidiary or company that employs

you.)

3

Pet., App. at 7a-8a. This proposed agreement required

Respondent’s signature for acceptance to be effective. Pet.,

App. at 7a. Respondent never signed this EMPLOYEE

HANDBOOK RECEIPT AND AGREEMENT. Pet., App.

at 18a.

Moreover, the offer of Petitioner INA to arbitrate with

Respondent was withdrawn by e-mail on August 17, 1998.

Pet., App. at 8a-9a.

Our recent handling of the employee Hand-

book receipt and agreement process left a lot

to be desired. Virtually all aspects of the commu-

nications and distribution process that could

have gone wrong did — moreover, the process was

too complicated and legalistic, and I apologize...

Upon reflection, and based upon your feedback,

we are removing the link between signing the

Handbook receipt and future compensation and

benefits...

We are proud of the many programs and benefits

that are available to all CIGNA employees. And

we want everyone in the company to understand

that you have your legal rights and more options

for resolving employee grievances fairly, quickly

and inexpensively than employees in most other

companies...

Pet., App. at 8a-9a. (emphasis added)

Thereafter, Respondent became an employee of

Petitioner, CIGNA Insurance Company, and was never

presented with an employment contract or offer to arbi-

trate while an employee of CIGNA Insurance Company.

Pet., App. at 3a. When Respondent’s employment with

CIGNA Insurance Company was terminated on May. 14,

4

1999, all Petitioners sought to impose arbitration after

Respondent asserted various claims against them.

The New Jersey Supreme Court held that INA’s

withdrawal of the proposed arbitration agreement prior to

execution and acceptance by Respondent was fatal to

Petitioners’ claim that Respondent “knowingly and volun-

tarily” agreed to arbitration. Pet., App. at 17a.

Without plaintiff's signature on the [Fmployee

Handbook Receipt and] Agreement that ac-

companied the “You and CIGNA” handbook, we

cannot enforce the arbitration provision unless

we find some other explicit indication that the

employee intended to abide by that provision. No

such indication appears in the record.

Pet., App. at 16a. (emphasis added) In so holding, the

Court stated:

Our contract law does not permit [Petitioners] to

contemplate or require [Respondent’s] signature

on an agreement and then successfully to assert

that the omission of that signature is irrelevant

to the agreement’s validity. Cf. Restatement (Sec-

ond) of Contracts 60 (1981) (instructing that of-

feree must comply with offeror’s prescribed

manner of acceptance to create contract).

Pet., App. at 18a.

Absent plaintiff's signature here, we cannot en-

force the waiver provisions unless we find some -

other unmistakable indication that the employee

affirmatively had agreed to arbitrate his claims.

Finding no such proof, we must hold for plaintiff.

5

Pet., App. at 18a. Finding no agreement to arbitrate, the

New Jersey Supreme Court held the FAA to be inapplica-

ble. Pet., App. at 17a.

In so holding, the Court specifically emphasized the

uncontroverted lack of consideration between Petitioners

and Respondent necessary to form the basis for an arbitra-

tion agreement.

The e-mail [sent to Respondent] also states on

behalf of [Petitioners], “we are removing the link

between signing the Handbook receipt and future

compensation and benefits actions.”

Pet., App. at 16a. This finding by the New Jersey Supreme

Court of no consideration further establishes that no

contractual agreement to arbitrate did exist or even could

have existed between Petitioners and Respondent.

4

v

A WRIT SHOULD BE DENIED BECAUSE THE

DECISION BELOW ABIDES WITH THE FAA

AND WITH DECISIONS OF THIS COURT

Absent “an agreement in writing to submit to arbitra-

tion” the FAA is not applicable. 9 U.S.C. § 2; 9 U.S.C. § 3.

The New Jersey Supreme Court did not “run afoul of the

FAA.” Pet., App. at 17a. There is nothing unusual about

the New Jersey Supreme Court, or any other court, hold-

ing that if an offeror’s prescribed manner of accepting a

contract is to sign an agreement, there is no agreement if

the contract is not signed. Pet., App. at 18a.

s

vv

6

A WRIT MUST BE DENIED BECAUSE NO

CONTROVERSY EXISTS IN THE COURTS

OVER ARBITRATION AGREEMENTS

This Court has spoken often and clearly about the

FAA. Petitioners point out in their brief the many deci-

sions which enforce written arbitration agreements.

However, all of them are inapplicable in this case given

the undisputed absence of an arbitration agreement.

In those cases cited by Petitioners, written agree-

ments to arbitrate were actually accepted by being signed

by the parties involved. Challenges to the arbitration

provisions in these written arbitration agreements were

ultimately unsuccessful because technical, procedural and

non-substantive defects were insufficient to overcome the

express written agreement to arbitrate mutually entered

into by the parties. Doctor’s Associates .nc. v. Casarotto,

517 U.S. 681, 116 S.Ct. 1652 (1996) (Arbitration agree-

ment initially found technically invalid because Montana

statute required that a contract containing arbitration

clauses so indicate same in underlined capital letters on

the first page); David L. Threlkeld & Co. v. Metaligesell-

schaft Ltd., 923 F.2d 245 (2d Cir.), cert. denied, 501 US.

1267, 112 S.Ct. 17 (1991) (Parties did not dispute exis-

tence of arbitration agreements and challenges to same

were based upon it being a contract of adhesion and

contrary to Vermont statute were rejected because “the

policy in favor of arbitration is even stronger in the con-

text of international business transactions”); Allied-Bruce

Terminex Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834

(1995) (Party unsuccessfully challenged admitted arbitra-

tion agreement on grounds that Alabama statute invali-

dated predispute arbitration agreements). _

7

Deficiencies inconsistent with the FAA are not why

the New Jersey Supreme Court rejected Petitioners’

request to arbitrate Respondent’s claims. The undisputed

absence of an arbitration agreement, not formalistic

disqualifiers, are what distinguish this case from those

enforcing written and executed arbitration agreements.

4

v

A WRIT SHOULD BE DENIED SINCE HOLDINGS

BY NEW JERSEY COURTS ABIDE BY THE FAA

Without citing a single case by any New Jersey court,

Petitioners argue that “New Jersey” courts have a “jaun-

diced view of arbitration in the employment context.”

Incredibly, the support for Petitioner’s contention lies

exclusively in a footnote about pending legislation.

The reality is that the New Jersey courts have histori-

cally and repeatedly enforced arbitration agreements in

accordance with the FAA. Young v. Prudential Ins. Co. of

America, 688 A.2d 1069 (App. Div.), certif. denied, 694

A.2d 193 (1997); Singer v. Commodities Corp (U.S.A.), 678

A.2d 1165 (App. Div. 1996). Most recently, in Martindale

v. Sandvik, Inc., 800 A.2d 872 (2002) the New Jersey

Supreme Court upheld an arbitration agreement.

42

v

CONCLUSION

For the foregoing reasons, this Court should deny

Petitioners’ petition for a writ of certiorari.

Respectfully submitted,

PAUL LEODORI

4 Heron Court

Medford, New Jersey 08055

(609) 654-5651

Respondent, Pro Se

ea